On January 1, 2016, Indiana will join nearly 30 other states with statutes authorizing a relatively new form of for-profit corporations known as a benefit corporation. The Indiana statute was created by House Enrolled Act 1015, which was authored by Rep. Casey Cox (R-Fort Wayne), and will be codified at Ind. Code 23‑1‑1.3.
Indiana’s benefit corporation statute, like most (maybe all) others, is based on a model statute developed by B Lab, a nonprofit organization that certifies businesses that meet certain standards for social and environmental performance, accountability, and transparency. There are currently 1287 businesses certified by B Lab, including some companies that were well known for their social responsibility long before they were certified, such as Ben & Jerry’s.
Sorting out the terminology
Incorporation as a benefit corporation and certification by B Lab are two different things, but, unfortunately, both benefit corporations and certified businesses are often called “B Corps.” Another source of misunderstanding is that, although benefit corporations may serve purposes similar to the purposes served by nonprofit corporations, including those that are tax exempt under Section 501(c)(3) of the Internal Revenue Code, benefit corporations are neither nonprofit nor tax exempt. Finally, despite the similar terms, a B Corp (by either definition) is not an alternative to an S-corp or a C-corp. The latter two terms refer to the part of the Internal Revenue Code that applies to a particular corporation, not to the state statute that governs the corporation or to any sort of certification. In fact, if things are not already confusing enough, every B Corp is also either an S-corp or a C-corp.
What is a benefit corporation?
A benefit corporation is a business corporation (i.e., a corporation governed by the Indiana Business Corporation Law or IBCL, Ind. Code 23-1-1), that opts in to the benefit corporation statute. In essence, the benefit corporation statute serves as an overlay to the IBCL. (Indiana’s professional corporation statute works more or less the same way, as an overlay to the IBCL.) Both existing corporations and new corporations may elect to be covered by the benefit corporation statute.
Once a company has elected to be a benefit corporation, it is subject to several additional requirements. Among them are:
- It must have a corporate purpose of generating a general public benefit, and it may have a purpose of generating a specific public benefit, including public welfare, religious, charitable, scientific, literary, or educational purposes.
- In making decisions, its directors and its officers must take into account not only the interests of the shareholders but also the interests of other specified constituencies and concerns.
- It must have a “benefit director,” and it may have a “benefit officer,” who have specific responsibilities and duties.
- It must prepare and deliver to shareholders an annual benefit report including, among other things, an assessment of the company’s social and environmental performance measured against standards established by an independent third party (such as these).
Why elect treatment as a benefit corporation?
The advantages of the benefit corporation statute probably fall into two categories: to enhance the company’s reputation as a socially and environmentally responsible company and to give its officers and directors more “cover” for making decisions that serve a public benefit at the expense of lower corporate earnings.
Companies have good reasons to enhance their reputations for social and environmental responsibility. For example, the company’s goods and services may be more attractive to certain groups of customers; its stock may be more attractive to certain groups of investors; and it may help with the company’s recruitment of employees. The relative values of B-Corp certification and opting into a benefit corporation statute are a bit speculative. It seems likely that B-Corp certification will be most effective in reaching out to customers and prospective customers because B Lab provides publicity to certified companies, but investors who are interested in corporate governance might attribute value to incorporation under a benefit corporation statute, either alone or in combination with certification.
On the other hand, protecting the directors from allegations of breach of fiduciary duties to the shareholders by making decisions that do not maximize profits is directly related to benefit corporation statute, and probably not at all to certification. Although, as we will discuss later in this series, the IBCL already authorizes directors to take into account constituencies other than shareholders, some think the benefit corporation statute provides even more protection for officers and directors who pass up opportunities to make more money for the company in favor of serving a public purpose.